R v KD [2019] ACTSC 62

1. On 21 November 2018, KD (the offender) pleaded guilty to an offence of attempted sexual intercourse without consent contrary to section 54(1) of the Crimes Act 1900 (ACT), by virtue of s 44 of the Criminal Code 2002 (ACT) (the Criminal Code).

2. The maximum penalty for the offence is 12 years of imprisonment.

3. The agreed facts are set out in the Statement of Facts, which forms part of the Crown's Tender Bundle, which was Exhibit 1 on sentence. The facts, in short summary, are as follows.

4. At about 9pm on 5 March 2018, the offender and his partner (the victim) were at their home. The victim was lying on her back on the lounge in the living room when the offender approached her, pinned her down and repeatedly placed a pillow over her face. The offender pulled down the victim's pants and underwear and attempted to have sexual intercourse with her without her consent.

5. In evidence before me was a Victim Impact Statement from the victim of the offence. The Victim Impact Statement was read out by the victim at the sentence hearing.

6. Courts know of the serious effects of offences such as this. Nevertheless, it is valuable and important to hear the words of the victim in this case.

7. Here, the victim's statement included the following:

When I made the report I was angry and not in a good space, I wanted help for [KD] and our family. We have had our ups and downs and this has been a huge wake up call not only for [KD] but myself and how we communicate needs to change. We have sourced information to start couple's counselling and have both done individual counselling.

We realise the issues within our relationship. I have seen change in [KD] and we both know our son comes first - behaviour needs to be managed in a healthier way for us both and I believe mental health issues played a part, we both are seeking help and support with this. We both cannot believe how things got so bad. 2018 and onwards has been a very hard year for me and [KD] but I am positive we can go on treating each other with respect. I have had stresses this year dealing with many organisation such as domestic violence services, ACT policing, DPP and Housing. As our home was damaged I lived with my mum for over 6 months, it took housing over 10 months to repair the damage, I felt intimidated by many staff members such as harassing phone calls from ACT policing asking me about personal meetings with Care and Protection a number of times, my son always comes first and I was painted as a terrible mother who did not deserve my son. This got me thinking why did I ask for help from these organisations?

...

There was a time when I thought I just couldn't deal with anymore of these government processes, I could no longer answer my phone. I could type many pages about how I was impacted but basically everything has been very hard for me and [KD] and I wish happiness for both of us whether together or apart. There are many traumatic memories from all of this and I am happy to say we have both come out stronger. Me and [KD's] relationship could not go on how it was and now more than ever that is very clear. Believe it or not but the process and unprofessional communication of some agencies has been more traumatising then the truth of what happened back in March.

8. The Court acknowledges the Victim Impact Statement of the victim.

9. Section 44 of the Criminal Code creates a "discrete offence": R v Holliday [2017] HCA 35; 260 CLR 650 at [31]. The maximum penalty for the offence attempted applies: s 44(9). The maximum penalty in this case is 12 years of imprisonment.

10. An attempt requires "conduct that is more than merely preparatory to the commission of the offence attempted" and intention to commit the offence attempted: ss 44(2) and (5) of the Criminal Code.

11. Counsel for the offender submitted that the offence was towards the lower end of objective seriousness, as the offence was an attempt which ceased. Counsel for the offender noted the circumstances surrounding the offending, namely a relationship under a significant amount of strain, which culminated in arguments between the offender and victim over a weekend spent by her in Sydney.

12. The prosecution submitted that a sexual assault offence is not to be regarded as at the lower end of the scale merely because intercourse did not actually occur, and that an attempted sexual intercourse without consent may be a serious offence, in particular where there are aggravating features: see R v Grech [1999] NSWCCA 268.

13. The prosecution further submitted that this was an objectively very serious example of an attempt offence for a number of reasons, including that the young child of the complainant was present. It is not clear in the agreed statement of facts that the child was present other than residing there. Therefore, I cannot and do not take the presence of the child into account. In Gore v R; Hunter v R [2010] NSWCCA 330; 208 A Crim R 353 Adams J (with whom Handley AJA and Howie AJ agreed) stated the following at [26]-[27]:

The Crown case, therefore, provided no proper basis for inferring that the offences for which the offender was being sentenced, whether substantively or on the Form 1, had occurred in circumstances in which the youth was exposed to their conduct and criminality...The evidence is ambiguous: it is one thing to know that drugs were being supplied and quite another to be "exposed" to it. Such a circumstance of aggravation must be proved beyond a reasonable doubt. This evidence did no more than raise the possibility.

14. The prosecution submitted that the offender's motive was about control and entitlement, a motive which underpins family violence offending more generally. The prosecution submitted that as a result of this motive, the offending was a serious example of the offence. Regardless of motive, the prosecution ultimately submitted that the offence was of mid-range seriousness.

15. I find the offence to be approaching mid-range seriousness.

16. Nevertheless, it must be stated that references to low, mid-range and high range are unlikely to be helpful in this jurisdiction. As has previously been expressed in this jurisdiction, it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of the case: R v Toumo'ua [2017] ACTCA 9; 265 A Crim R 499 (Toumo'ua).

17. The objective seriousness is informed by the agreed facts, in this case including the pinning down of the victim and the repeated placing of the pillow over the victim's face.

18. In evidence before me is the pre-sentence report (PSR) prepared for the offender.

19. The offender is 24 years of age, and is one of five children to his parents union. The offender reported a chaotic childhood with exposure to domestic violence and his father's mental health issues in his family home. The offender's parents separated when the offender was eight years of age, and the offender lived with his mother and siblings. The offender's father passed away when the offender was 12 years of age. The offender reported being subjected to sexual abuse by a family member in the family home. He has disclosed this information to family members since entering custody.

20. The offender's mother has a number of ongoing health issues, and the offender had acted as her carer for several years. The offender's mother re-partnered, the offender enjoyed a positive relationship with his step father until he passed away in 2012.

21. The offender entered into a relationship with his partner (the victim) in 2013. The couple have one child together. The offender acknowledged to the author of the PSR that the relationship had been difficult for him and his partner at times, with several arguments and disagreements prior to the current offence occurring. The offender has remained in an ongoing relationship with his partner and hopes to engage in supports in the community to address ongoing relationship issues.

22. The offender resided with his partner for the two years prior to entering custody. The offender intends to reside with his partner upon release, however his partner indicated to the author that she would prefer the offender to live with his mother initially while the couple work on some relationship issues prior to returning to live together.

23. The offender left school prior to completing year 12 and commenced work as a removalist. He worked various hospitality and removalist positions prior to entering custody. The offender also received Centrelink prior to entering custody for the caring responsibilities he provided for his mother.

24. The offender reported that he had never had an issue with alcohol consumption. The offender has used cannabis daily since the age of 17, as well as methamphetamine use from the same age. The offender's methamphetamine use commenced as sporadic use, which increased to regular fortnightly use by the age of 22. The offender has made attempts to self-detoxify from both substances before entering custody. The offender claimed to have not used methamphetamine from August 2017, and ceased cannabis use from August 2017 until March 2018. The PSR notes that the offender's claim about ceasing methamphetamine use is inconsistent with service records when the offender was admitted into custody in March 2018.

25. The offender admitted that since entering custody, he has begun using heroin and buprenorphine intravenously, substances that he had not used in the community previously.

26. The offender informed the author of the PSR that he had been diagnosed with Post Traumatic Stress Disorder (PTSD) at five years of age as a result of witnessing domestic violence between his parents. The offender has also been diagnosed with Attention Deficit Disorder as a child, and experienced depression and anxiety throughout his life, for which he has been prescribed medication.

27. The offender reported a suicide attempt in the weeks prior to entering custody, but has not had any thoughts of suicide or self-harm since entering custody. An ACT Health Information letter dated 24 December 2018 indicates that the offender presented with no evidence of psychosis or major mental illness upon his arrival at the AMC. The offender has engaged in six therapeutic intervention sessions with a counsellor from the Corrections Psychological Support services. The offender has requested to be placed on the methadone program whilst in custody.

[The offender] is assessed as a medium-high risk of general reoffending using the Level of Service Inventory-Revised (LSI-R) and a moderate low risk of sexual reoffending using the Static 99. He described a chaotic childhood with exposure to violence in the family home which he stated has adversely impacted his mental health from a young age. He described a history of ongoing illicit substance use commencing in his teenage years. It is concerning that [the offender] has disclosed continued use of illicit substance use since entering custody. He would benefit from engaging in an appropriate intervention to address his ongoing illicit substance use.

[The offender] has been in a relationship with the victim of the current offence for several years. [The offender's] partner has been the victim of past family violence offences prior to the current offence occurring. [The offender] stated he accepts responsibility for the current offence and appears to acknowledge the need to engage in interventions in relation to his offending behaviour.

29. The PSR notes that the offender accepted responsibility for the current offence, and that he agreed with the content of the PSR. The offender acknowledged the negative impacts of his actions for the victim and stated that although there had been ongoing relationship issues prior to the offence, that this was not a justification for his actions. The offender indicated that he was motivated to engage in programs and interventions in relation to his offending behaviour.

30. The prosecution submitted that "exceptional caution" is required with evidence of this kind because it is "notorious that in relationships where there is family violence, there is frequently post-offence forgiveness by the victim" and "apparent remorse or contrition" by the offender. The prosecution submitted that "[a] court will normally 'not give any weight' to the victim's attitude because of the importance of general deterrence", and because "forgiveness by the victim also operates contrary to the interests of other victims". The prosecution cited R v Glen (unreported, NSW Court of Criminal Appeal, 19 December 1994, Simpson J), cited in Shaw v R [2008] NSWCCA 58 at [27] in this regard.

31. Accordingly, I do not ascribe significant weight to the forgiveness of the victim.

32. In evidence before me were two letters in support of the offender.

33. The first is a letter under the hand of Ellen Read, clinician/social worker at Corrections Psychological and Support Services, addressed to the offender. The letter includes the following:

You commenced individual therapeutic sessions with CPSS in June 2018. You identified your primary therapeutic goals were to address symptoms of depression and anxiety, learn how to better manage your emotions, and improve your relationships with significant others.

You completed 6 sessions focused on the following:

Mindfulness skills for managing rumination and anxiety;
Interpersonal skills for improving your relationships with your partner and mother;
Chain analysis for better awareness and management of your emotions;
Psychoeducation for mood management and sleep hygiene.

Throughout your engagement with CPSS, you consistently demonstrated motivation and commitment to progressing your goals. You showed enthusiasm and initiative, attended all available sessions and completed homework items as recommended to a very high standard. In particular, you are commended for using mindfulness skills daily, and noticing the benefit to your mood and sleep routine.

As discussed, you have now been closed from CPSS as it was mutually agreed that you have achieved your therapeutic goals. Congratulations.

34. The second is a reference from the offender's mother. The reference includes the following:

[KD] is the youngest of five children, he has three older sisters and one older brother. His father passed away in 2006 from apparent drug related circumstances.

As a child [KD] was witness to domestic violence the perpetrator his father. Often [KD] would hide under his bed and call police.

Care and protection became involved with [KD] at a young age and he and his siblings placed in foster care and he had trouble adjusting at school. His father was arrested in 2002 for threatening to "blow [KD's] head off" with a .222 rifle at school and with charges of domestic violence. His father was diagnosed with Bi Polar in the early 90's.

Many times as a young child from the age of 3 & 4 [KD] would try to protect me from his father's violence. [KD's] father and I divorced in 2003. He had very little if any contact with his father after the divorce.

...

His love for his son...has no end, [his son] and [the victim] are [KD's] reason for his existence. He is absolutely loved and adored by his many nephew and nieces who are missing him not being around. When his older siblings left home he became my carer at the age of around 13 and remained so up until he was remanded in custody.

Early in 2018 [KD] attended a psych review at Canberra Hospital and was put on medication for anger issues. He was maintaining regular contact with the psychiatrist and his GP. He was also a client at Men's link.

35. I take these references into account on sentence.

36. The offender has a limited criminal history, with no prior history of sexual offending. However, he has previously been convicted of a common assault on the same victim as the offence currently before me.

37. The prosecution submitted that the plea of guilty was negotiated and finalised approximately one to two weeks prior to the revised trial date of 26 November 2018. The trial was listed for three days.

38. The prosecution submitted that in this matter, the brief had been prepared, prosecution witnesses had been subpoenaed and conferenced, and the trial was ready to go ahead when the plea was entered. Therefore, the prosecution submitted that the plea was of minimal utilitarian value.

39. The prosecution referred to the matter of Cranfield v The Queen [2018] ACTCA 3, outlining that a "usual" plea of this nature would be between 10-15%. The relevant passage is at [37]-[38]:

37. The discount is a question of discretion. This Court has, however, generally applied predictable discounts in different circumstances. This was said by Murrell CJ in Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 at [47]:

The bare fact of a plea of guilty entered in the Supreme Court will usually attract a s 35 discount of 10-15%. A common sense approach to "utilitarian value", the case law and the terms of s 35(2)(b) and s 35(5) of the Sentencing Act all support the importance of the timing of a plea to the assessment of an appropriate discount. A last-minute plea commonly attracts a discount of 10%. A plea entered (or firmly indicated) after committal and before a trial date has been set will usually result in a discount of more than 10% and, commonly, leads to a discount of 15%. Occasionally, a plea in the Supreme Court attracts a higher discount; it is always a matter in the discretion of the sentencing judge.

38. The context and terms of s 35 (2) of the Crimes (Sentencing) Act 2005 (ACT) support the proposition that the primary policy consideration that determines the degree of discount for a plea of guilty is the utilitarian value of the plea, which will be largely determined by the timing of the plea. If offenders are to have the incentive to enter a plea of guilty, carrying with it all of the benefits that flow to victims, witnesses and court resources, they should have a reasonable expectation that a plea will be productive of a meaningful reduction in their sentence. However, a 'normal' discount may be inappropriate having regard to the other considerations in s 35 (2) or other circumstances, including those identified by Howie J in Borkowski.

40. Further, the prosecution submitted that on the basis of Toumo'ua, an offender should not benefit both from a discount for the plea of guilty and the benefit of fewer charges. The relevant passage in Toumo'ua is at [56]:

An offender can benefit either from a substantial discount for the utilitarian value of an early plea, or from a lower sentence flowing from a lesser charge or fewer charges following negotiations, but should not usually benefit in both ways.

41. Counsel for the offender submitted that the value of the plea is increased as the plea spared the victim from giving evidence. Counsel for the offender submitted that a 15% discount was apposite in the matter.

42. In my view a 15% discount for the plea of guilty is appropriate in this matter.

43. The offender has spent 369 days in custody from 12 March 2018 until 15 March 2019 solely referable to this offence.

44. The PSR indicates that the offender has been involved in a number of behavioural incidents and has been subject to three disciplines whilst in custody, including an assault on another detainee on 13 April 2018, refusing to supply a urine sample when directed to do so on 6 October 2018, and possession of a prohibited item, being a cut down syringe, on 11 December 2018.

45. Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of this Court relating to offenders who committed similar offences. The following cases from this jurisdiction provide a "yardstick" as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54].

46. I was referred by the parties to the case of R v Bourke [2018] ACTSC 5 as a yardstick for the offence of attempted sexual intercourse without consent. The offender in that matter was also to be sentenced to an offence of recklessly inflicting grievous bodily harm, and an offence of assault occasioning actual bodily harm. In relation to the attempted sexual intercourse without consent, the offender attempted to insert his penis into the victim's mouth. The sentencing judge noted that the offender acted under a drug induced psychosis during the offences, and accepted that his expressions of remorse were genuine. The offender was sentenced to 24 months of imprisonment for the offence of attempted sexual intercourse without consent. The total sentence of imprisonment was 3 years, with a non-parole period of 24 months.

47. I was also referred to a table of sentences for the offence of sexual intercourse without consent, including R v UG [2018] ACTCA 64; R v QG [2018] ACTSC 343; R v LQT [2018] ACTSC 246; R v NO [2018] ACTSC 37; Cranfield v The Queen [2018] ACTCA 3; R v NL [2018] ACTSC 22; R v Haddara [2018] ACTSC 70; R v Palmer [2017] ACTSC 357; R v Al Abbasi [2017] ACTSC 239; R v Alabbasi [2017] ACTSC 231; R v Stevens (No 3) [2017] ACTSC 297; R v Hoyle (No 2) [2017] ACTSC 175; R v Aroub [2017] ACTSC 187 (Aroub); Singh v The Queen [2017] ACTCA 17; R v Wyper (No 2) [2017] ACTSC 103; R v Naqvi [2016] ACTSC 345; Gillard v The Queen [2016] ACTCA 50; R v Goold (No 2) [2016] ACTSC 227; R v SV [2016] ACTSC 211; R v Agresti [2016] ACTSC 9; Singh v The Queen [2015] ACTCA 65; R v Tamawiwy (No 4) [2015] ACTSC 371; R v PM (No 2) [2015] ACTSC 358; R v Stanley [2015] ACTSC 322 and Livas v The Queen [2015] ACTCA 54.

48. Every case is different and must be approached on its own facts. Nevertheless, I have considered these comparable cases as yardsticks, with the caveat that the offence before me is an attempt pursuant to s 44 of the Criminal Code.

49. In sentencing the offender, the Court is required to take into account those matters under s 33 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) that are known and relevant. I have referred to the relevant matters above.

50. The Court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7 of the Sentencing Act. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, and recognition of harm to the victim are important sentencing considerations.

51. In Pasinis v The Queen [2014] VSCA 97, Neave JA and Kyrou AJA stated the following at [57]:

General deterrence is of fundamental importance in cases of domestic violence. The victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities. The key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm.

52. Rehabilitation is also an important consideration having regard to the offender's relative youth and remorse.

53. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case, an alternative to full-time custody is not appropriate in my view.

54. As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.

55. I note the offender's childhood disadvantage and note that childhood disadvantage does not "diminish with the passage of time and repeat offending" but does not have the same "(mitigatory) relevance for all purposes of punishment": Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [44].

56. Drug addiction is a relevant circumstance for the Court to consider but is not, of itself, a mitigating factor: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [193]- [203], [273] and [347]; R v Martin [2007] VSCA 291; 20 VR 14 at [19]- [30].

57. Ordinarily, significant offences of sexual assault will result in sentences of full time imprisonment. The ACT Sentencing Database statistics show that 83 per cent of s 54 offenders receive sentences of full time imprisonment, 12 per cent receive partially suspended sentences and only five per cent receive fully suspended sentences. Sentences are generally in the range of three to five years: Aroub at [42]. As discussed above, bare sentencing statistics provide limited assistance (see Pham; Hili) and the matter before me is an attempt offence.

58. It must be recognised by the Court that the offence committed against the victim has had a serious and significant impact upon her. The consequence of being the victim of this offence must be acknowledged.

59. In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offence and subjective matters.

60. The appropriate sentence for the offence of attempted sexual intercourse without consent is 2 years and 9 months, reduced to 2 years and 4 months on account of the discount for the plea of guilty of 15%.

(a) I record a conviction for the offence.

(b) In respect of the offence of attempted sexual intercourse without consent (XO2018/31448), the offender is sentenced to a term of 2 years and 4 months of imprisonment, commencing on 12 March 2018 and ending on 11 July 2020;

(c) I set a non-parole period of 1 year and 2 months, commencing 12 March 2018 and ending on 12 May 2019.

I certify that the preceding sixty-one [61] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson.

(Sentencing) Act 2005

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